UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ELHAM SALEMI, Plaintiff - Appellant,

v. COLORADO PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION; TIM MOORE, in his official and individual capacities; ANGELA SETTER, in her official and individual capacities, Defendants - Appellees. No. 17-1085 (D.C. No. 1:13-CV -02826-WYD-CBS) (D. Colorado)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MURPHY , and McHUGH , Circuit Judges.

________________ _________________ Elham Salemi brought t his action against th e Colorado Public Em ployees’ Retirement Association (“PERA”) , and individual employees of PE RA, raising claims under Title VII of the Ci vil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981; the First Amendment, the Family and Medical Leave Act ( “FMLA”), and the Equal Pay Act (“EPA”). The distr ict court granted summary judgm ent on all of Ms. Salemi’s claims, except the EPA claim as against PERA. The dist rict court also

* This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It m ay be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 17, 2018
Elisabeth A. Shumaker Clerk of Court2 denied Ms. Salemi’s requests that the jury be ins tructed on an EPA retaliation claim, in addition to the EPA wage disc rimination claim included in th e final pre-trial order. The district court denied the re quests, and the jury returned a verdict in favor of PERA on the EPA wage d iscrimination claim. On appeal, Ms. Salemi challenges the district court’s grant of summary judgment on her (1) Title VII clai ms for discrimination and ret aliation; (2) 42 U.S.C. § 1981 retaliation claim; (3) Fir st Amendment retaliation claim ; and (4) FMLA retaliation claim. Ms. Salemi al so challenges the district cour t’s denial of her requests to submit an EPA retaliation clai m to the jury. We affirm the d istrict court’s grant of summary judgment on the claims b efore us on appeal and conclude that the district court did not abuse its discreti on in denying Ms. Salemi’s requ ests to submit an EPA retaliation claim to the jury.
I. BACKGROUND
A. Ms. Salemi’s Empl oyment at PERA
1. Overview of Employment His tory Through January 2011 In 2004, PERA hired Ms. Salemi as a temporary intern in its Alt ernative Investments (“AI”) Division. Ms. Salemi’s starting salary was $ 27,040. Defendant Tim Moore was involved in the hiri ng process and Chris Reilly serve d as Ms. Salemi’s immediate supervisor. At all tim es relevant, Jennifer Paquette served as Chief Investment Officer at PERA and was the supe rvisor for the head of the AI D ivision. In September 2004, PERA promoted Ms. Salemi to a permanent Port folio Associate position, with an annual salary of $50,000. According to Ms. Salemi, in late3 2006, her then-supervisor, Mr. R eilly, discussed the possibility of promoting her to the position of Analyst. But Mr. Reillywas leaving PE RA and Ms. Pa quette decided to select a replacement for Mr. Reilly befor e promoting Ms. Salemi. In Fe bruary 2007, PERA selected Mr. Moore to head the AI Division, and he assumed a supervisory role over Ms. Salemi. Mr. Moore did not immediat ely promote Ms. Salemi to the position of Analyst. In January 2008, PERA gave Ms. Sal emi a merit-based raise, resu lting in an annual salary of $61,166. Six months l ater, in June 2008, Mr. Moore pr omoted Ms. Salemi to the position of Analyst, eventually resulting in an annual salary o f $80,000 for 2009. As of January 2011, Ms. Salemi remain ed in an Analyst position as a g rade 13P employee, with an annual salary of $90,400. The o ther Analyst in the AI Divisi on, Dave Saunders, was also a grade 13P employee and had an annual salary of $90,900.
2. Ms. Salemi’s Performance at PERA & Her Complaints of Discrimina tion PERA conducted performance apprai sals on a yearly basis. Mr. Re illy served as the appraiser relative to Ms . Salemi’s performance in 2005 a nd 2006, and Mr. Moore served as the appraiser th ereafter. Ms. Salemi’s appraise rs gave her an overall ranking of “fully successful,” wh ich equated to a rating of fou r out of five, for her performance in 2006 through 2011. Elements of Ms. Salemi’s yearl y performance appraisals, however , were less favorable and noted a need for h er to voice opinions at meeting s and to develop communication and interpersonal skills. In the 2006 appraisal, Mr. Reilly identified “communication skills” as a “deve lopment focus” and noted that Ms. Salemi had “a slight tendency to hold back h er opinions” and “should continue to gain confidence in4 verbalizing and defending her id eas to the team.” App’x at 687, 690. In the 2007 appraisal, Mr. Moore indicated t hat Ms. Salemi should “take mor e initiative.” Id. at 699, 702. And in the 2008 evalua tion, Mr. Moore indicated that Ms. Salemi’s “focus in the coming year should be to expand her knowledge base in Al ternative Investments, contribute more to Investment Committee meetings, communicate her thoughts to the team, [and] con tinue to develop relationships o utside of PERA.” Id. at 716. Mr. Moore also identified “i nitiative/action orientation” as a “development focus,” stating that Ms. Salemi “is very responsible in her dai ley [sic] duties and in special requests. I would like to see her be more aggressive in analyzing the portfolio. She definitely has th e skills to analy ze the market and our portfolio in ways that could provide interesti ng debate within the team.” Id. at 710–11. Similar notations about Ms. Salemi’s need to take initiative and verbal ize her opinions in meetings can be found in her2009 and 2010 appraisals. 1 In March 2011, Ms. Salemi met with Mr. Moore and sought a promo tion to the position of Portfolio Manager. So me of the qualifications for t he Portfolio Manager position, as identified in the j ob description, included: (1) “ [e]valuates, recommends and makes appropriate investmentdecisions based on fundamental , quantitative and economic research and analysis, c onducts extensive reference ch ecks and legal and

1 In the 2009 appraisal, Mr. Moor e indicated that Ms. Salemi sho uld provide “more input” during meetings and “take more initiative in portf olio analysis.” App’x at 722–23. In the 2010 appraisal , Mr. Moore stated, “I will con tinue to challenge and encourage [Ms. Salemi] to be mor e vocal and assertive as she ha s valuable insights and is learning a great deal about this business.” Id. at 740.5 business negotiations”; (2) “[e]n sures compliance with investme nt agreements, analyzes partnership agreements , and coordinates activity with investment counsel”; and (3) “[m]aintains relationshi p base with current and potenti al investment partners and peer groups by serving on advisory committees.” Id. at 668. The job description also indicated that the position required: (1) “[k]nowledge of financial and capital markets, concepts, pri nciples, and theories”; (2) “[a]bility to understand, interpret and analyze balance sheets, income statements and cash flow stateme nts”; and (3) “[s]trong oral and written communication skills.” Id. Mr. Moore rejected the idea of p romoting Ms. Salemi on the grou nds that Ms. Salemi lacked the necessary co mmunication skills and was not su fficiently assertive or confrontational to serve as a Portfolio Manager. 2 Mr. Moore further opined that Ms. Salemi had not improved her communication skills, had not b ecome more involved in team meetings, and had not taken advantage of mento ring opportunities. According to Ms. Salemi, Mr. Moor e indicated that she “was not confrontational and it was not [her] forte to be on a portfolio manager track.” Id. at 612.

2 As early as December 2009, Mr. M oore concluded that Ms. Salemi ’s longterm potential at PERA was at h er “[p]resent position or equiva lent” rather than “[o]ne level higher.” App’x at 728. Mr. Moore described an indi vidual capable of being a Portfolio Manager as “[u] nafraid to question things,” a ble to “[s]peak up in front of [a] large group and voi ce [an] opinion or recommendati on,” able to “[t]alk to a GP on a level-headed articul ate manner—express ideas and conc erns,” and “[a]ggressive—go out and look for new investment ideas, then br ing them back to [the] team.” Id. at 365. In accord with the descr iptors used by Mr. Moore, Dan Chilton, a Portfolio Manager who served as a mentor to Ms. Sale mi, described a Portfolio Manager as someone who is “a stand-alone person” who can “source a deal and run the whole process from start to finish.” Id. at 369.6 During her March 2011 meeting with Mr. Moore, Ms. Salemi also e xpressed displeasure with the job dutie s he was assigning her. Ms. Salem i believed she was being assigned a disproportionate num ber of operational tasks compare d to other AI Division members. Mr. Moore rejected her request to reduce her operation al tasks, noting that her performance of operational tasks— such as cash flow activities—r educed conflicts and personnel issues both in the AI D ivision and at PERA more gener ally. Following the March 2011 meeting, Mr. Moore spoke with Defendan t Angela Setter, the Human Resources Direct or at PERA, about providing M s. Salemi with opportunities to improve her communication and interpersonal sk ills. In May 2011, Ms. Salemi met with Ms. Setter. Ms. Salemi arrived at the meeting w ith the intent to file a formal written complaint about the job duties assigned to her b y Mr. Moore. Ms. Setter’s notes from the meeting indicate M s. Salemi said “she was being treated differently than the rest of the male empl oyees in her division.” Id. at 800. After Ms. Setter suggested to Ms. Salemi that the filing of a fo rmal written complaint might “create an adversarial situation,” Ms. Salemi decided against submitting the complaint

. Id. at 528. Instead, Ms. Salemi, at Ms. Setter’s suggestio n, agreed to work on improving her communication skills by taking communication classes. On June 3, 2011, Ms. Salemi, Mr . Moore, and Ms. Setter met to d iscuss Ms. Salemi’s employment plan for 20 11 and the assignment of operati onal tasks. During the meeting, Ms. Salemi complained that Mr. Moore had recently stat ed that he “d[id] not want to force the guys to work with [her].” Id. at 797. Following the meeting, Ms. Salemi signed up for a conference that, in her words, was “designed fo r professional women and7 how they should improve their c ommunication skills at work.” Id . at 462. Via an e-mail, Ms. Salemi also expressed apprec iation for Ms. Setter’s “help and support.” Id

. On June 28, 2011, after anothe r meeting with Ms. Setter, Ms. S alemi submitted a formal written complaint. In pertinent part, the complaint, dat ed May 16, 2011, read: Dear Angela,

. . . . As you may know, I joined the A lternative Investments team as an intern in May of 2004 and bega n working as an associate in September of 2004. I was promote d to an analyst in 2008, but on ly after I complained to [Ms. Paquette] th at [Mr. Moore] should have, bu t did not, promote me. I would like to p rogress within the company to Portfolio Manager, but [Mr. Moore] is again holding me back and telling me that he does not see me as a Portfolio Manager. I have been dedicated to my w ork, and my performance proves my competence, stability, and wo rk ethics [sic]. If you examine my past annual performance appraisal, you will find that I have been de scribed as a team player with a positive attitude. I have had a high le vel of interest in learning about altern ative asset class [sic]. I als o brought a wealth of quantitative knowledge w ith me to PERA. I am confiden t that I have exhibited the highest work standards and my performance has been consistent in the past seven years. I'd like to bring [the] below i ssues that I have struggled with to your attention: • I have been treated different ly than the other analysts, who are all men, working in [sic] Alter native Investments team. Since m y promotion to an analyst, I have not been functioning at my job descriptions. My core responsibil ities have always been around the operational activities. I am given the responsib ilities that no one else wants, including managing “zombie GPs” and administrative dutie s. I have not been allowed to deve lop like the male analysts. • I have requested from [Mr. Moor e], on a continuous basis, the same opportunity given to the ma le analysts, but he has ignored me. The opportunity and the mentorship h e has provided to other colleag ues with similar education and backgrou nd have not been given to me. • After my promotion, I found out my compensation was not even placed within an analyst range. This situation was not correcte d until the consultant began its review of the investment professionals’8 compensation four months later. I think I was the only one in t his situation. • My male colleagues have been a ssigned to the most promising opportunities which enable them to move up in their careers whe re as it is a constant struggle for me to move forward. I have been give n a [sic] numerous excuses by [Mr. Moor e] in the past few years. • When I asked about my future career at PERA at my year-end review, [Mr. Moore] told me that a new title called “system som ething” could be created for me in the f uture if I take more responsibi lities. The words operation and system wer e also added to my 2011 plan. I f eel like I have been taking a step backwa rd when others have been moving up.

. . . . • Lastly, [Mr. Moore] said I wa s closed because I fold my arms across my chest. In my culture, cr ossed arms are a sign of resp ect. I find it unfair that I have been judge d by my body language. I should not be judged by it or my quietnature. Employees s hould be treated ba sed on merit and performance. The past performance is a great indicati on of an employee’s future performance. At this point, I feel that my re peated verbal requests about th e inadequate attention to my situ ation have yielded no results. I have little direction and I have received l ittle guidance on what the futur e holds for me at PERA. I have enjoyed worki ng with my colleagues and I hav e no wish to be moved to a differentteam. I’d like to reiterate tha t I have worked diligently in the past s even years and I have been a val ue add [sic] member of the AI team. Wh ile my quiet nature is being hel d against me, it should not prevent me from moving forward in my career. The “quiet employee” is oftent imes the most knowledgeable and competent employees [sic]

. I could name many PERA ’s [sic] employees that are quiet in nature. I tru st you will agree, and I look fo rward to your assurance that a formal plan woul d be formulated to enable me t o develop and grow professionally. I thank you in advance fo r addressing my concerns. Sincerely, Elham Salemi
Id. at 465–66.9 Shortly thereafter, in July 2011 , Ms. Salemi submitted FMLA lea ve paperwork. Ms. Salemi’s medical p rofessional was unable to dete rmine when Ms. Salemi could return to work and indicated that Ms. Salemi was u nable to perform her job functions because her “work e nvironment [was] too stressful and hostile.” Id . at 3651. Before Ms. Salemi started FMLA leave, PERA initiated an i nternal investigation into the allegati ons in Ms. Salemi’s formal writt en complaint. The notes from interviews of employees at PERA provide the following info rmation. Mr. Moore opined that Ms. Salemi was not suited fo r the Portfol io Manager track because she was not comfo rtable with “conflict,” “speakin g in front of others,” and “being assertive.” Id at 364. Mr. Moore also indicat ed that Ms. Salemi did not volunteer for opportunities or cli ent meetings during weekly in ternal meetings and that her lack of initiative was the reason why she had not had as many opportunities as other members of the AI team . Mr. Moore further stated that on the few client trips Ms. Salemi attended she often di d not add any value because she either “fumbled” or remained quiet and only took note s. Finally, Mr. Moore contende d that many of the operational duties Ms. Salemi pre viously performed were shifted to another employee and that Ms. Salemi ofte n incorrectly characterized du ties as operational. Aaron Norton, a Portfolio Manag er on the AI team and someone w ho served as a mentor to Ms. Salemi, indicated that while Ms. Salemi was goo d at performing assigned tasks, she did not tak e initiative or speak up in meet ings. Mr. Norton also discussed a due diligence opportun ity he provided her, which he said “didn’t go well” because she did not ask any que stions during the meeting. Id. at 366. And, based on10 Ms. Salemi’s performance at the m eeting, Mr. Norton indicated h e would be “hesitant” to go on another clie nt meeting with Ms. Salemi and that Ms. Salemi should not be tasked with l eading another meeting. Id . Mr. Norton attributed some of Ms. Salemi’s problems to “cultura l hurdles in the way she views men and interacts with them.” Id. While stating that he “feels f or Ellie” and “likes her a lot,” Mr. Norton indicated that she had no t demonstrated the “confidence” to be a Portfolio Manager. Id. John Kasic, another Portfolio Man ager on the AI team, described Ms. Salemi as “very professional,” “nice,” and “bright” but also noted tha t she was “[v]ery shy and introverted.” Id. at 367. Mr. Kasic noted that in the 100 or so internal meeting s he attended with Ms. Salemi, “sh e has never ever asked a questi on.” Id. Mr. Kasic also stated that when he mentore d Ms. Salemi for a year and “tr ied to pull her in on certain projects it wa s difficult to get the quality of product that he wanted.” Id. Mr. Kasic attributed the tasks ass igned to Ms. Salemi by Mr. Moore as an attempt to accommodate her introverted natur e in that analytic duties, as opposed to client-based duties, do not require the same interpersonal and communication skills. Mr. Kasic also stated that everyone on the AI team has the same opportuni ties to sign up for projects. Dan Chilton, a third Portfolio Manager on the AI team, indicat ed that opportunities are available for everyone. Mr. Chilton could thi nk of only one meeting in seven years where Ms. Salemi spoke up a nd expressed an opini on. Along those11 lines, in the year that Mr. Chilto n served as Ms. Salemi’s ment or, she hardly asked him for any advice. Dave Saunders, who joined the A I team as an Analyst in 2010, i ndicated that everyone on the AI team had an e qual opportunity to take on pro jects and present ideas. Mr. Saunders indicated tha t Ms. Salemi is not treated di fferently than other members of the AI team. Ms. Setter acknowledged that Ms . Salemi arrived at the May 201 1 meeting with the intent to file a forma l written complaint. Ms. Setter “encouraged [Ms. Salemi] not to” submitthe complaint and su ggested that “they s hould try to work on things and make it work out.” Id. at 377–78. Finally, severa l other PERA employees or clients of PERA who had more limited interactions with Ms. S alemi all indicated that Ms. Salemi was quiet, reser ved, did not ask necessary ques tions, and was not ready for bigger responsibilities that involved interaction wit h clients. With counsel present, Ms. Salemi provided information to PERA’s internal investigators. Ms. Salemi allege d that men on the AI team made fun of women behind their backs after weekly meetings and that Ms. Setter br ought up Ms. Salemi’s sex and national origin during one of their meetings. Ms. Salem i contested whether Mr. Saunders performed any opera tional duties, specifically whe ther he was tasked with any cash flow activities. Ms . Salemi also complained that she was not given the same opportunities to interact w ith clients and to attend off-s ite client meetings as were given to Mr. Chilton and Mr . Saunders. Ms. Salemi, however , admitted that Mr. Moore’s reason for not giving he r more opportunities or promoti ng her to the position12 of Portfolio Manager centered on the fact that she was not conf rontational enough. Ms. Salemi also admitte d that members of the AI team could “tak e as many [meetings] as you want.” Id. at 375. Finally, Ms. Salemi attributed her inability to rise in PERA to Mr. Moore not pr oviding her proper training, an d she viewed operational assignments as punishme nt for doing a good job on o perational assignments. On September 1, 2011, PERA mailed Ms. Salemi a letter informing her that the internal investigation resu lted in the conclusion that the allegations in her complaint were “unsubstantiated.” Id. at 467. On September 29, 2011, while on FMLA leave, Ms. Salemi, through co unsel, submitted a charge of discrimination to the EEOC. The charge identified sex, national origin, and retal iation as forms of discrimination and stated that th e discrimination was a continu ing action, which spanned from September 2004 to the date of the charge. 3 Ms. Salemi’s charge alleged she was rejected for a promotion in 2010 but that two male empl oyees, who joined the AI team after her, received a promotion. Ms. Salemi furtheralleged she was paid less than her male counterparts and was given administrative an d operational tasks not assigned to them. Ms. Salemi stated: Because of my quiet and feminine nature , I have been judged as unable to do the work of the males in my department. My body language has also been criticized. For examp le, my boss has criticized me fo r

3 Ms. Salemi also checked off “oth er” as a basis for her claim o f discrimination but her narrative does not identif y any other basis for discrim ination. Further, it is not apparent from the charge how the discrimination started in Sept ember 2004 where the only pre-2008 event discussed in the charge’s narrative is PERA hiring Ms. Salemi.13 crossing my arms during conversa tion, but that is a sign of res pect in my Persian culture.
Id. at 795. The charge also raised alleged incidents of retaliatio n by Mr. Moore and
Ms. Setter. Ms. Salemi returned from FMLA l eave on December 19, 2011. On Ja nuary 5, 2012, Mr. Moore conducted Ms. Sal emi’s performance review for 2 011. As in the prior years, Mr. Moore ranked Ms . Salemi as “fully successful.” Relative to Ms. Salemi’s communication skills, Mr . Moore stated, “Ellie has a s trong base of knowledge and I continue to encourage her to be more vocal in b oth internal and external meetings. She has much t o offer the team and after man y years of observing, I would challenge her to be mor e communicative in our discussio ns.” Id. at 746. Mr. Moore’s evaluation comments a bout Ms. Salemi’s quiet nature and her need to improve her communicati on skills are consistent with so me of Ms. Salemi’s own statements and actions. For instance, notes from a meeting between Ms. Salemi and two PERA employees who inves tigated Ms. Salemi’s internal c omplaint of discrimination indicate Ms. Salemi stated she lacked sufficient knowledge to be confrontational. And, in her inte rnal complaint of discriminati on, Ms. Salemi acknowledged her “quiet nature.” Id. at 466. Similarly, in her EEOC charge, Ms. Salemi admitted she was “quiet” in nature. Id. at 795. On January 16, 2012, Mr. Moore se lected Mr. Saunders for a prom otion to the position of Portfolio Manager. Al so after her return from FMLA leave, Ms. Salemi began providing Mr. Moore with week ly reports detailing the tas ks she performed14 and identifying how much time she spent on tasks that she class ified as administrative or operational. I n a March 22, 2012, response to one of Ms. Salemi’s weekly reports, Mr. Moore disagr eed with Ms. Salemi’s categoriz ation of some of the tasks she performed as administ rative or operational. Mr. Moore ’s response also raised concerns about Ms. Salemi ’s job performance, stating tha t “[t]he work that [she] presented at ourinternal meetings has been incomplete, i nvalid and unsatisfactory.” Id. at 763. Further, Mr. Moore’s res ponse questioned the amount of time it was taking Ms. Salemi to complete some tasks, including cash flow activities. Finally, Mr. Moore’s response indi cated that he did not see “an y progress being made with team building, communicating with other team members or co ntribution to the dialogue and debate with the team and the investment process.” Id. Ms. Salemi replied to Mr. Moore’ s response, indicating that whe n she tried to speak up in a meeting her ideas w ere met with “hos tile” feedbac k rather than “positive feedback.” Id. at 765. Ms. Salemi also questi oned Mr. Moore’s assessment of her performance given her “fu lly successful” performance app raisals during her seven years at PERA. And Ms. Sal emi raised continued complaints about the tasks assigned to her by Mr. Moore and the lack o f “opportunity to ge t involved with [the] investment decision making process.” Id. at 766. Ms. Salemi c oncluded her reply email by stating: I am concerned that I continue t o be treated differently becaus e I am a woman and now, after c omplaining about discrimination, I am als o being retaliated against. I am and always have been a strong pe rformer. I just want the same opportunities to adva nce [] that the men i n the department have received.15 Id

. Around the time of this intercha nge between Mr. Moore and Ms. S alemi, Andy Ward, a peer investor who did bu siness with PERA, approached se veral individuals in the AI Division, including Mr . Moore, about a conversation h e had with Ms. Salemi when she was performing a due diligence exercise. Mr. Wa rd indicated that he was “appalled” by his conversat ion with Ms. Salemi, that Ms. Salemi had no valuable information to offer, a nd that he was disappointed tha t PERA would have someone as unknowledgeable and “j unior” as Ms. Salemi call him. Id. at 349, 445. Following his conversation with M r. Ward, Mr. Moore contacted M s. Paquette to recommend that PERA terminat e Ms. Salemi’s employment. On May 9, 2012, several PERA employees, including Mr. Moore, M s. Setter, and Ms. Paquette, met to discuss M s. Salemi’s employment at PER A. Notes from the meeting show the group concluded that Ms. Salemi had not improv ed her communication skills, had not tak en initiative like other membe rs of the AI Division, and “[p]uts PERA at risk fro m a reputational standpoint.” Id. at 772. The group also determined that Ms. Salemi fail ed to deliver on bigger projects she was assigned after her return from FMLA leave and that she did not seek out additi onal work after returning from leave. Overall, t he group noted that Ms. Salemi’ s performance had deteriorated, that she could not keep up with changes in the pr ocess for analyzing investment opportunities, and that she had not improved her com munication skills. With Ms. Paquette’s approval, the group decided to terminate Ms . Salemi’s16 employment at PERA. On May 10, 2 012, Mr. Moore sent Ms. Salemi a notice terminating her employment base d on “unsatisfactory performance .” Id. at 803.
B. Procedural Events & History The EEOC issued Ms. Salemi a right to sue letter and she initiated this action in the United States District Court for the District of Colorado. Through an amended complaint, Ms. Salemi advancedseven claims for relief: (1) dis crimination and failure to promote under Title VII; (2) reta liation under Title VII; (3) r ace and national origin discrimination under 4 2 U.S.C. §§ 1981, 1983; (4) retaliation under §§ 1981, 1983; (5) retaliation under the First Amendm ent, through a § 1983 claim; (6) retaliation under the FMLA; and (7) wage discriminati on under the EPA. Claims One and Two were against PERA, Claims Three through Five were against Mr. Moore and Ms. Setter in their individual and official capacitie s, and Claims Six and Seven we re against all three defendants. Defendants moved for summary jud gment on all of Ms. Salemi’s cl aims for relief. While Defendants’ motion for summary judgment was pending befor e the district court, the parties submitted a proposedfinal pretrial order. In that filing, the parties described Ms. Salemi’s claims as follows: Ellie Salemi brings claims agai nst all Defendants for Race/Nati onal Origin Discrimination and Retaliation pur suant to 42 U.S.C. § 1983 und er 42 U.S.C. § 1981; claims against all Defendants for First Amendmen t Retaliation pursuant to 42 U.S.C. § 1983; claims against all De fendants for Retaliation in violation of the F amily Medical Leave Act, 29 U. S.C. § 2615(a); claims against all Defendants for Wage Discrimination in violation of Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) ; and claims against Defendant PERA for Discri mination, Failure to Promote, and17 Retaliation in violation of Title VII of the Civil Rights Act o f 1964, as amended, 42 U.S.C. § 2000e, et seq

. Proposed Pretrial Order , Salemi v. PERA , No. 1:13-cv-02826-WYD-CBS (D. Colo. Aug. 20, 2015), ECF No. 74 at 10 (emphasis added). A magistrate judge adopted this portion of the parties’ proposed f inal pretrial order without m odification. See App’x at 813. Thereafter, the district court granted Defendants’ moti on for summary judgment on all claims except for the EPA wage discrimination c laim as against
PERA. Before trial on the surviving EP A wage discrimination claim, PE RA filed a motion in limine to exclude tes timony about Ms. Salemi’s emotio nal distress on the ground that emotional distress is not a compensable damage with in an EPA wage discrimination claim. In respon se, Ms. Salemi suggested that he r amended complaint raised a claim for retaliation under the EPA—a claim she assert ed allowed for emotional distress evidence and damages. A t a hearing on PERA’s motion inlimine, the district court ruled that Ms. Salemi ha d not raised a claim for retaliat ion under the EPA. Ms. Salemi then made an oral request to amend her complaint. Becaus e the parties had approved a final pretrial orde r and prepared their cases for tr ial based on that order, the district court denied the requestto amend. At the close of evi dence on the EPA wage discrimination claim, Ms. Salem i made a second oral request to amend her complaint to add the EPA retaliation claim. The district court again denied Ms. Salemi’s request to amend. The jury returned a verdi ct against Ms. Salemi on her EP A wage discrimination claim.18 Ms. Salemi timely filed a notic e of appeal. On appeal, Ms. Sal emi contests the district court’s grant of summary judgment as to her (1) Title VII discrimination claim; (2) Title VII retaliation claim; (3 ) § 1981 retaliation claim a gainst Mr. Moore and Ms. Setter in their individual capacities; (4) First Amendment reta liation claim against Mr. Moore and Ms. Setter in their i ndividual capacities; and (5) FM LA retaliation claim as against PERA. Ms. Salemi also cont ests the district court’s con struction of her amended complaint and its denial of he r requests to submit an EPA retal iation claim to the jury.
II. DISCUSSION
A. Claims Dismissed at Summary Judgment
1. Standard of Review We review the district court’s ru lings on summary judgment de n ovo, applying the same standard as the district court. See Universal Underwriters Ins. Co. v. Winton , 818 F.3d 1103, 1105 (10th Cir. 2016). S ummary judgment is appropriate if “there is no genuine dispute as to any mate rial fact and the movant is entit led to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett , 477 U.S. 317, 322–23 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). For purposes of summary judgment, “[t]he nonmovi ng party is entitled to all rea sonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc. , 726 F.3d 1136, 11 43 (10th Cir. 2013). However, “if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of ev idence to support an essential element of that claim and the nonmovant cannot identi fy specific facts that would create a genuine issue.” Id. at 1143–44. Finally, “we c an affirm on any ground19 supported by the record, so long as the appellant has had a fai r opportunity to address that ground.” Alpine Bank v. Hubbell , 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).
2. Preservation Requirement “A federal appellate court will no t consider an issue not passe d upon below.”
F.D.I.C. v. Noel , 177 F.3d 911, 915 (10t h Cir. 1999) (quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976)). “Conseque ntly, when a litig ant fails to raise an issue below in a timely fashion and the court be low does not address the merit s of the issue, the litigant has not preserved the i ssue for appellate review.” Id. To properly raise an argument below, a litigant must p resent the argument “with suff icient clarity and specificity.” Folks v. State Farm Mut. Auto. Ins. Co. , 784 F.3d 730, 741 (10th Cir. 2015). To this point, “ vague, arguable refere nces to a point in the district court proceedings do not preserve the issue on appeal . . . because s uch perfunctory presentation deprives the trial c ourt of its opportunity to con sider and rule on an issue in any detail.” Id. (citation and internal quotati on marks omitted). Furthermore, “[b]ecause of the importance of r aising an issue below, we have consistently turned down the argument that the raisi ng of a related theory was suff icient to preserve an issue for appeal.” Cummings v. Norton , 393 F.3d 1186, 1190 (10th Cir. 2005) (internal quotation marks omitte d). Likewise, we have held that “[a]dvancing an argument for one cause of acti on . . . does not constitute rais ing it for all causes of action.” Id. at 1190; see id. at 1191 (concluding argument rai sed in support of failure20 to accommodate claim did not pre serve appellate review of that argument relative to dismissal of wrongful termination claim).
3. Title VII Claims

a. Exhaustion of Administrative Remedies “Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision t hat ‘specifies with precision’ the prerequisite s that a plaintiff must satisfy before filing suit.” Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 109 (2002) (quoting Alexander v.
Gardner-Denver Co. , 415 U.S. 36, 47 (1974)). Unde r the provision, an employee must file a charge of discrimina tion with the EEOC within 180 d ays of the alleged unlawful employment practice givi ng rise to the charge unless t he employee has initially instituted proceedings w ith a State or local agency, in which case the employee has 300 days to file her EEOC charge. 4 42 U.S.C. § 2000e-5(e)(1). “A plaintiff normally may not bring a Title VII action based upon claims that were not part of a timely-filed EEOC char ge for which the plaintiff has received a right-to-sueletter.” Foster v. Ruhrpumpen, Inc. , 365 F.3d 1191, 1194 (10t h Cir. 2004) (quotation marks omitted). “[E]ach discrete incident of [dis criminatory or retaliatory] tr eatment constitutes its own ‘unlawful em ployment practice’ for which ad ministrative remedies must be exhausted.” Martinez v. Potter , 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Morgan , 536 U.S. at 110–13). Discrete in cidents of discrimination

4 Ms. Salemi filed her initial ch arge with both the EEOC and the Colorado Civil Rights Division; thus, her c harge triggered the 300-day p rovision in 42 U.S.C. § 2000e-5(e)(1).21 include termination, failure to promote, and denial of training opportunities. Morgan , 536 U.S. at 114–15. And the Supr eme Court has generally rejecte d the continuing violation theory—a theory under which a plaintiff’s belated EEO C charge is timely with respect to discrete inciden ts of discrimination or retalia tion that occur more than 300 days before the charge on th e ground that several discrete incidents are all part of a continual pattern of discrimination. 5 Id. at 108, 110; see id. at 106–07 (describing continuing violation theory). Thus, a plaintiff fails to timely exhaust her administrative remedies relative to a discrete incident of disc rimination or retaliation that occurs more than 300 days b efore she files a charge with t he EEOC. Id. at 110. Additionally, where discrete inci dents of discrimination occur after an employee files an initial EEOC charge, the emp loyee must file an additional oramended EEOC charge to satisfy the exhaustion requirement. See Martinez , 347 F.3d at 1210 (finding allegations as to September 2000 reprimand and April 2001 termi nation unexhausted where employee filed charge in Ju ly 1999 even though September 2000 and April 2001 incidents were part of a c ontinuing pattern of alleged unl awful action). Ms. Salemi filed her sole EEOC ch arge on September 29, 2011. Th e rules governing exhaustion caused the di strict court to determine Ms. Salemi properly exhausted her administrative reme dies only for discrete inciden ts occurring between December 3, 2010, and September 29, 2011—the 300-day period bef ore Ms. Salemi filed her EEOC charge. Thus, in c onsidering Ms. Salemi’s Title VII claims, the

5 An exception to this general ru le rejecting the continuing vio lation theory exists with respect to a hostil e work environment claim. Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 115 (2002).22 district court limited its analys is to allegations of discrete incidents of discrimination and retaliation that occurred during this exhaustion period. 6 On appeal, Ms. Salemi argues the district court’s exhaustion ru ling improperly limited the scope of her claims b ecause the discrimination by P ERA had a cumulative effect, and she was continually denied opportunities for advanc ement. Ms. Salemi’s argument is nothing more than a regurgitation of the continuing violation theory rejected in Morgan . And our post- Morgan case law makes clear t hat the continuing violation theory is not available in the context of a Title VII claim based on discrete incidents of discrimination orretaliation, including allegatio ns of a denial of opportunities for advancem ent in the workplace. See Daniels v. United Parcel Serv.,
Inc. , 701 F.3d 620, 633 (10t h Cir. 2012) (“[Plain tiff] can employ t he continuing

6 At the time the district court granted summary judgment, our p recedent “steadfastly held that exhaustion of administrative remedies is a ‘jurisdictional prerequisite to suit.’” Lincoln v. BNSF Ry. Co. , ___ F.3d ___, slip op . at 13 (10th Cir. Aug. 17, 2018) (quoting Sampson v. Civiletti , 632 F.2d 860, 862 (10th Cir. 1980)) (citing MacKenzie v. City & Cty. of Denver , 414 F.3d 1266, 1274 (10th Cir. 2005); Bertsch v. Overstock.com , 684 F.3d 1023, 1030 (10th Cir. 2012)). Applying this binding precedent, the district court held that where Ms. Salem i failed to exhaust her administrative remedies relative to a discrete incident of disc rimination or retaliation, it lacked jurisdiction to considera claim based on that discre te incident. In Lincoln , we overturned our pr ecedent by vote of the f ull court and held that a failure to exhaust administrative remedies c reates only an affirmative def ense subject to principles of waiver and estoppel. Id. at 16–17, 19–21. For two reasons, this change in our precedent does not impact t he outcome of Ms. Salemi’s case. Fi rst, unlike the plai ntiffs-employees in Lincoln , Ms. Salemi does not challenge the district court’ s decision to cabin its exhaus tion ruling in terms of a lack of jurisdiction. Second, un like the defendant-employer in Lincoln , PERA did not waive its failure to exhaust defe nse; instead, it timely raised the defense in both its motion to dismiss and its motion for summary judgment. Accordin gly, while the district court’s decision to cab in its failure to exhaust rulin g in terms of jurisdiction is no longer accurate, this inaccur acy does not alter the result t hat Ms. Salemi cannot advance claims for which she did not properly exhaust her admin istrative remedies.23 violation theory only if her den ial of training was not a discr ete act. But . . . one of the claims Morgan labeled a discrete act was a de nial-of-training claim. 536 U.S . at 114–15. . . . Thus, [plaintiff] ca nnot take advantage of the co ntinuing violation theory to make her claim time ly.”). Accordingly, we, like the districtcourt, confine our analysis of Ms. Salemi’s Title VII discrimination and retaliati on claims to discrete employment actions that occurred within the 300-day period befo re her lone EEOC charge. 7
b. Analysis of Discrimination Claim Under Title VII, it is unlawful for an employer “to fail or ref use to hire or to discharge any individual, or othe rwise to discriminate against any individual with

7 In Morgan , the Supreme Court observed that each paycheck that comprised a claim of disparate pay constitute d a discrete incident of discr imination. Morgan , 536 U.S. at 111–12 (citing Bazemore v. Friday , 478 U.S. 385, 395 ( 1986) (per curiam)). Subsequent to Morgan , Congress, by way of the L illy Ledbetter Fair Pay Act, amended 42 U.S.C. § 2000e-5 to apparently subject claims based on disparate pay to the continuing violation theory for purposes of exhaustion such that each new incident of disparate pay resets the time period for filing an EEOC charge. See Groesch v. City of Springfield , 635 F.3d 1020, 1024–25 (7t h Cir. 2011) (stating the Lilly Ledbetter Fair Pay Act o f 2009 “amends Title VII . . . by providing that the statute of limitations for fili ng an EEOC charge alleging pay d iscrimination resets with each paycheck affected by a discriminatory decision”); see also 42 U.S.C. § 2000e-5(e)(3). Ms. Salemi, in responding to the Defendants’ e xhaustion argument in their motion for summary judgm ent, however, failed to raise an argument based on 42 U.S.C. § 2000e-5(e)(3) and he r fleeting reference to the Lil ly Ledbetter Fair Pay Act was within the context of herfailure to promote claim, nother contention that she received less pay than sim ilarly situated male employees. See App’x at 3721–23. Accordingly, although Ms. Salemi mentions 42 U.S.C. § 2000e-5(e )(3)(A) in her opening brief on appeal, any ar gument based on this provision i s not properly preserved for appellate review w ith respect to the disparate pa y aspect of her discrimination claim. Therefore, we also confine our review of Ms. Salemi’s Title VII claims based on disparate pay to her salary during the 300 days leading up to her EEOC charge.24 respect to [her] comp ensation, terms of conditions, or privileg es of employment, because of such individual’s . . . sex[] or national origin.” 4 2 U.S.C. § 2000e-2(a)(1). On appeal, Ms. Salemi argues that PERA discriminated against he r in three ways: (1) failure to promote, (2) dispara te pay, and (3) denial of profes sional growth opportunities. Ms. Salemi advances her failure to promote alleg ation both as a standalone claim of discriminati on and as a claim of discrimina tion when considered in combination with her other all egations of discrimination. Th us, we start our analysis with Ms. Salemi’s conten tion that PERA discriminated a gainst her by not promoting her. i. Failure to promote A claim for discrimination based on a failure to promote is sub ject to the McDonnell Douglas 8 burden-shifting framework, underwhich the plaintiff has an initial burden of establishi ng a prima facie case. Jones v. Barnhart , 349 F.3d 1260, 1266 (10th Cir. 2003). O ne version of the McDonnell Douglas burden-shifting framework we have employed relativ e to a failure to promote all egation requires the plaintiff to demonstrate “(1) she was a member of a protected c lass; (2) she applied for and was qualified for the position; (3) despite being quali fied she was rejected; and (4) after she was reject ed, the position was filled.” 9 Id. If the plaintiff satisfies

8 McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).

9 At times, we have identified th e fourth element as: “after pla intiff’s rejection, ‘the position remained open and the employer continued to seek applicants from persons of plaintiff’ s qualifications.’” Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1226 (10th Cir. 2000) (quoting McDonnell Douglas , 411 U.S. at 802)).25 her initial burden, the burden shifts to the employer to “artic ulate a legitimate, nondiscriminatory reason fo r its employment action.” Id. If the employer satisfies its burden, the burden shifts back to the plaintiff to demonstrate that the employer’s reason is a pretext f or discrimination. Id. A plaintiff may establish pretext by showing that the reason offere d by the employer is “factually f alse” or by showing “weaknesses, implausibilities, i nconsistencies, incoherences, o r contradictions in the employer’s proffered reason, such that a reasonable fact findercould deem the employer’s reason unworthy of credence.” DePaula v. Easter Seals El Mirador , 859 F.3d 957, 970 (10th Cir. 2017) (quotation marks omitted). Based on our earlier discussion of exhaustion, the only employm ent action properly before us on this claim is Mr. Moore’s rejection of Ms . Salemi’s March 2011 request for a promotion to t he position of Portfolio Manag er. The district court concluded Ms. Salemi failed to d emonstrate that she was qualifi ed for the promotion as required by the second eleme nt of the prima facie case. In considering the second elementof the prima facie case, “[w] e have long respected employers’ wide latit ude in setting job standards and requirements and in deciding whether applicants meet those standards.” Cortez v. Wal-Mart Stores, Inc. , 460 F.3d 1268, 1275 ( 10th Cir. 2006) (internal quotation marks omitted). From this, “we have held that it is not the fact finder’s task to assess w hich of an employer’s

Because Ms. Salemi fail s to satisfy her burden on other aspects of her claim, we need not determine the proper phrasi ng of the fourth element or whet her Ms. Salemi preserved an argument based on the language employed in Kendrick rather than the language employed in Jones v. Barnhart , 349 F.3d 1260, 1266 (10th Cir. 2003).26 stipulated qualifications ought t o be required of applicants fo r a particular position.”
Id. (internal quotation marks omi tted). Finally, a court may look to a written job description to help determine the qualifications and essential job functions of a position. See Hennagir v. Utah Dep’t of Corr. , 587 F.3d 1255, 1262 (10th Cir. 2009) (identifying job description as factor to consider but doing so in context of ADA claim). Ms. Salemi presents two argumen ts for why the district court er red in concluding that she failed to adva nce sufficient evidence demon strating she was qualified for the Portfolio Manag er position. First, Ms. Salemi contends that her strong aptitude for analysis a nd her fully successful overall r atings on her appraisal reviews demonstrate that she metthe objective criteria for the position. We are unpersuaded by this a rgument. Successful p erformance at a lowerposition does not establish that an employee is qualified for a higher position e ven where there is some overlap between the duties of the lower and higher positions. See Hickman v. Flood
& Peterson Ins. , 766 F.2d 422, 425 (10th Cir. 1985) (holding trial court did n ot err in concluding that employee who su ccessfully perform ed secretarial duties and occasionally sold insurance to w alk-in customers was not qualif ied to serve as an insurance salesperson). Application of this principle from Hickman is particularly apt here. While there was partial overlap between the work performed by Analyst s and the work performed by Portfolio Managers , some responsibilities assigned to Portfolio Managers were not assigned to Ana lysts, or at least not assigne d to Ms. Salemi. In27 advancing her denial of opportunities argum ent, Ms. Salemi cont ends she was not assigned some of the tasks and work assigned to Portfolio Manag ers. Thus, Ms. Salemi’s successful performance a s an Analyst is not sufficient to demonstrate that she met the objective qualificati ons of the Portfolio Manager p osition. Ms. Salemi next contends that an individual’s failure to meet a n employer’s subjective qualification criteria is not an appropriate basis f or granting summary judgment at the prima facie sta ge. But here, there is no genuin e factual dispute regarding whether Ms. Salemi sa tisfied all of the subjective qu alifications of the position. Specifically, the job de scription identified “[s]tron g oral and written communication skills” as a qualif ication. App’x at 668. The unc ontroverted evidence, including Ms. Salemi’s own statem ents, demonstrat es that Ms. Sa lemi was quiet in nature, did not speak up in int ernal meetings, and struggled wi th communication skills in her Analyst position. A nd importantly, the Analyst po sition required her to communicate mostly with AI Divisi on members, while the Portfoli o Manager position would require her to comm unicate with clients, peer in vestors, and PERA employees outside the AI Divisi on. Thus, the only question is w here in the McDonnell Douglas burden-shifting framework the d istrict court should have considered Ms. Salemi’s failure to advance evidence demonstrati ng she met this subjective qualification for th e Portfolio Manager position. To be sure, we have stated: [A] plaintiff cannot prove that he was discriminated against si mply because an employment decision wa s based on subjective criteria . As one court aptly put it, however, “ just as use of subjective cri teria does28 not establish discrimination, clo aking such criteria with an ap pearance of objectivity does not immunize a n employment decision from a claim of discrimination.” Cortez , 460 F.3d at 1275 (quoting Goosby v. Johnson & Johnson Med., Inc. , 228 F.3d 313, 321 (3d Cir. 2000)). In this vein, we have held a districtcourt may consider subjective qualification criteria at the second and third steps of the McDonnell Douglas burden-shifting framework rathe r than when evaluating whether the plaintiff established she was qualified fo r a position at the first step of the framework. Burrus v. United Tele. Co. of Kan. , 683 F.2d 339, 342 (10th Ci r. 1982). But, we have also noted “while it is true that th e use of a subjective considerat ion to reject an otherwise qualified individual may entitle that individual to an inferenc e of discrimination, it does not require such an inference.” Ortega v. Safeway Stores, Inc. , 943 F.2d 1230, 1239 n.19 (10th Cir. 1991), abrogated by stat ute on other grounds . And, “whether a case is decided pursuant to a prima facie showing or on the merits is of academic importance only.” Hickman , 766 F.2d at 426. Although our case law favors cons idering whether an applicant s atisfied subjective qualification criteria at the pretext stage, we do n ot fault the district court for considering this issue at th e prima facie stage, given Ms. Salemi’s numerous admissions regarding her quiet n ature and her need to improve h er communication skills. Where several o f the essential func tions of the Portfol io Manager position require communication with non-A I Division individuals and serv ice on committees, the subjective criteria of “[s ]trong oral and written communica tion skills” permeates29 into several of the seem ingly objective functions. 10 And because no reasonable jury could find that Ms. Salemi posse ssed “[s]trong oral and written communication skills” or was able t o perform the essenti al job functions requ iring strong oral communication skills, the issue o f whether the district court s hould have considered this deficiency in Ms. Salemi’s evidence at the prima facie sta ge or the pretext stage is academic. 11 Accordingly, we affirm the distr ict court’s grant of summary j udgment on Ms. Salemi’s failure to promote claim. ii. Allegations of discrimination in combination Having concluded that Ms. Salemi failed to establish that discr imination played any role in PERA’s decisi on not to promote her, the comb ined discrimination claim rises and falls on her all egations of disparate pay and t he denial of professional growth opportunities. 1) Disparate pay Ms. Salemi’s attempt to establish discrimination through dispar ate pay fails for two reasons. First, Ms. Salemi di d not properly preserve the ar gument below. In responding to Defendants’ motion for summary judgment, Ms. Sale mi described the adverse actions that comprised he r discrimination claim and sta ted that she:

10 Ms. Salemi does not contend that listed essential functions, s uch as “conducts extensive reference check s and legal and business neg otiations,” “coordinates activity with invest ment counsel,” and “[m]aintain s relationship base with current and potential invest ment partners and peer groups by serving on advisory committees,” App’x at 6 68, are subjective in nature.

11 In the district court, and on a ppeal, PERA advanced arguments for dismissing Ms. Salemi’s failure to promote claim at the pretext stage.30 was treated less favorably than he r similarly-situated male col leagues when she was paid less than they were , when she was given less attractive and even demeaning ad ministrative and even secretari al assignments, when she was depriv ed of equal opportunities to pe rform all aspects of her position and her ability to succeed in the j ob by doing so, when she was not promoted on equal terms as the white men, when she was retaliated against for objecting to the disparate treat ment, and ultimately, when she was fi red for pretextual reasons. App’x at 3734–35 (em phasis added). But Ms. Salemi did not prese nt any arguments regarding the specific differenc es in her pay relative to any s imilarly-situated male employees, but instead argued that the items in her list collec tively amounted to an adverse action. See id. at 3734–36. Ms. Salemi therefore did not present a sufficient argument in the district court to put the distric t court on not ice that it needed to address a disparate pay basis fo r discrimination relative to he r Title VII discrimination claim. See Folks , 784 F.3d at 741 (requiri ng argument be presented with “sufficient clarit y and specificity”). It is thus not surp rising that, in resolving Defendants’ motion for summary j udgment, the district court did not address disparate pay when evaluating th e discrimination claim. Finally , while Ms. Salemi’s response to summary judgment did present an argument about disp arate pay relative to her EPA wage discrimination claim, our precedent holds that a party does not preserve an argument relative to one claim by advancing the arg ument with respect to a different claim. Cummings , 393 F.3d at 1190–91. Second, even if Ms. Salemi had properly preserved her argument based on disparate pay, she failed to a dvance evidence sustaining her bu rdens under the McDonnell Douglas framework. “[A] fema le Title VII plain tiff establishes a prima31 facie case of sex discrimination by showing that she occupies a job similar to that of higher paid males.” Sprague v. Thorn Ams., Inc. , 129 F.3d 1355, 1363 (10th Cir. 1997). “Once a prima facie case is established, the def endant must articulate a legitimate, non-discriminatory r eason for the pay disparity.” Id. (internal quotation marks omitted). “Once the defenda nt advances such a justificati on, the plaintiff must show that the defendant, regardl ess of the proffered reasons, i ntentionally discriminated against her.” Id

. During the exhaustion period, Ms . Salemi and Mr. Saunders were both Analysts in the AI Division. 12 In 2011, Ms. Salemi was a grade 13P employee with an annual salary of $90,400. Meanwh ile, Mr. Saunders was a grade 1 3P employee with an annual salary of $90,900. Thus , the evidence shows that, dur ing the exhaustion period, Ms. Salemi’s annual sala ry was one half of one percent less than her similarly-situated male counterpa rt. PERA presented evidence at tributing this slight difference in salary to Mr. Saunders joini ng the AI Division th rough a merger with the Denver Public Schools Retir ement System and a corresponding state law requirement that PERA pay Mr. Sa unders at a rate at least equiv alent to what he was making prior to the merger. 13 See Colo. Rev. Stat. § 24–51– 1748(1) (“Each staff

12 On appeal, Ms. Salemi attempts t o compare herself to the male Portfolio Managers. But, Ms. Salemi was ne ver promoted to Portfolio Manag er and argues that she did not receive the work o pportunities that were assigned t o the Portfolio Managers. Ms. Salemi cannot have it both ways; if her job was n ot similar to the Portfolio Managers, then she is not entitled to the same pay.

13 The record evidence further show s that while the state statute compelled PERA to pay Mr. Saunders at a ra te much higher than Ms. Salemi’ s salary during the32 member employed by the Denver public schools retirement system on the date of the merger shall be hired as an empl oyee-at-will of the association at a salary not less than the annual salary received from the Denver public sc hools retirement system as of the merger date . . . .” (emphasis added)). Mean while, Ms. Salemi provides no evidence to undermine or overcome PERA’s gender-neutral explana tion for the slight difference in salary. Accordingl y, although Ms. Salemi failed t o preserve her argument based on disparate pay, e ven if she had preserved the argument, she has not carried her burdens under the McDonnell Douglas framework. 2) Denial of professional growth opportunities Ms. Salemi contends that PERA dis criminated against her by deny ing her opportunities for professional gr owth. To establish a prima fac ie case of discrimination generally, a plain tiff must “show, by a preponde rance of the evidence, that she is a member of a protec ted class, she suffered an adve rse employment action, and the challenged action occurre d under circumstances giving r ise to an inference of discrimination.” 14 Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 1261, 1266 (10th Cir. 2015). PERA argues the denia l of professional growth oppor tunities is not an adverse employment action and Ms . Salemi failed to advance evid ence permitting an inference of discrimination.

pre-exhaustion, 2010 calendar-y ear, PERA all but evened out the two salaries by giving Ms. Salemi a 13% raise fo r 2011 while only giving Mr. Sa unders a 1% raise.
14 Unlike with the failure to prom ote or disparate pay arguments, neither party directs us to a prima facie sta ndard specific to discrimination based on a denial of opportunities, and we are notaware of such a standard.33 The district court concluded Ms . Salemi “ha[d] not demonstrate[ d] that she suffered any adverse employment action within the 300 day time period due to any discriminatory intent by PERA .” App’x at 1048 (emphasi s added). On appeal, Ms. Salemi contests the dis trict court’s first conclusion—the denia l of professional growth opportunities does not c onstitute an adverse action—but she does not challenge the district court’s second conclusion that she faile d to satisfy the third element of her prima facie case b y advancing evidence that perm its an inference of discrimination. By not presentin g an argument in opposition to the district court’s adverse conclusion on the third e lement of her prima facie case , Ms. Salemi has waived appellate review of the dis trict court’s determination t hat she did not establish a prima facie case of discrimina tion based on the denial of pro fessional growth opportunities. See Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs. , 569 F.3d 1244, 1252 (10th Cir. 2009) (“When an appellant does not challenge a district’s court’s alternate ground for its ruling , we may affirm the ruling.”); see also Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (1 0th Cir. 1997) (“Issues not raised in the opening brief are deem ed abandoned or waived.”). iii. Summation We affirm the district court’s gr ant of summary judgment on Ms. Salemi’s failure to promote and discrimi nation claims because Ms. Salemi did not (1) advance sufficient evidence demonstrati ng that she met the qualificatio ns for the Portfolio Manager position; (2) preserve he r disparate pay argument or es tablish a disparity in pay attributable to discrimina tion; and (3) challenge one of th e district court’s bases34 for rejecting her discrimination claim arising from the denial of professional growth opportunities.

c. Analysis of Re taliation Claim Title VII makes it unlawful “for an employer to discriminate ag ainst any of his employees . . . because [the employ ee] has opposed any practice made an unlawful employment practice by [Title VII] or because [the employee] ha s made a charge, testified, assisted, or participat ed in any manner in an invest igation, proceeding, or hearing under [Title VII].” 42 U.S. C. § 2000e-3(a). Absent dire ct evidence of retaliation, a plaintiff’s claim of retaliation under Title VII is subject t o the McDonnell Douglas burden-shifting framework. Fye v. Okla. Corp. Comm’n , 516 F.3d 1217, 1227 (10th Cir. 2008). To make out a prima facie case, a plaintiff must demonstrate that “(1) she engaged in protected opposition to discr imination; (2) a reasonable emp loyee would have found her employer’s subsequent action to be materially adverse; and (3) a causal connection exists between her protected activity and the employer’s action .” Semsroth v. City of
Wichita , 555 F.3d 1182, 118 4 (10th Cir. 2009). The district court concluded that Ms. Salemi first engaged in p rotected activity on May 18, 2011, when she made a v erbal complaint to Ms. Setter. T he district court further determined that Ms. Salemi did not experience a materially adve rse action between the date of her protected activity and the end of the exhaustion pe riod—September 29, 2011. Accordingly, the district court held that Ms. Salemi did not advance evidence to sustain a Title VII retaliation claim.35 Ms. Salemi raises two challenges to the district court’s grant of summary judgment. First, Ms. Salemi cont ends the district court incorre ctly determined the date on which she first engaged in pro tected activity, arguing that her March 4, 2011, meeting with Mr. Moore qualified as prote cted activity. But Ms. Salemi failed to preserve this argument when responding to Defendants’ motion for summary judg ment. Ms. Salemi provided a two-sentence argument regarding what protected activ ity she engaged in: “Ms. Salemi easily establishes a pr ima facie case of retaliation bec ause of the multitude of instances in which she, reasonabl y and in good faith, articulat ed her opposition to discrimination. Defendants cannot seriously take issue with thi s element of the claim.” App’x at 3738 (citations omitted ). Relative to the first senten ce, Ms. Salemi cited paragraphs 108, 139, 151, 166, 170, 177, 185, 187, 196, and 209 of her response to PERA’s statement of material fa cts and her statement of additio nal disputed material facts. None of the paragraphs c ited mention any March 2011 conduct engaged in by Ms. Salemi. In fact, the only paragrap hs that include a statement o f fact regarding Ms. Salemi opposing alleged discrimination and engaging in protected activ ity are (1) paragraph 177, which involves her request t o meet with Ms. Setter in May 2011 ; (2) paragraph 185, which involved a June 2011 meeting with Ms. Se tter; and (3) paragraph 209, which discusses an April 6, 2012 , communication to Mr. Moore. Acc ordingly, Ms. Salemi failed to preserve any argument that sh e engaged in protected activityas early as March 2011. Therefore, we, like the distri ct court, limit our review of Ms. Salemi’s retaliation claim to events occurring between May 18, 2011, and September 29, 2011.36 Second, Ms. Salemi argues the di strict court erred in concludin g that she did not experience a materially adverse action as a result of retaliati on between May 18, 2011, and the filing of her EEOC charge on September 29, 2011. Ms. Sa lemi identifies three actions she contends satisfy the second and third elements of h er prima facie case: (1) removing her from considerationfor a promotion to the positionof Portfolio Manager, (2) assigning her menial work, and (3) Ms. Setter discouraging her from filing a formal, internal written complaint. We ar e unpersuaded that Ms. Salemi has sustained her burden. Regarding the first two actions , an employer “need not suspend previously planned adverse employment acti ons upon encountering an employe e’s protected activity.” Foster v. Mountain Coal Co. , 830 F.3d 1178, 1192 (1 0th Cir. 2016) (quoting Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 272 (2001)). App lying this principle, it is apparent that Mr. Moore conclude d Ms. Salemi was not qualified for a promotion to the Portfolio Manager position as ear ly as January 2010 and certain ly by March 2011. That is, Mr. Moore removed Ms. Salemi from the Portfo lio Manager pro motion track before Ms. Salemi engaged in protected activity in May 2011, and his c ontinuing belief that Ms. Salemi was not qualified for the Portfolio Manager position cannot rationally be attributed to Ms. Salemi having, by then, engaged in protected activity. Likewise, Ms. Salemi’s amended complaint alleges that Mr. Moore was assigning her administrative and operational tasks, primarilycash flow activities, before M ay 2011. And Ms. Salemi does not direct us to any eviden ce establishing an uptick in th e number of assigned administrative and operational tasks between May 18, 2011, and September 29, 2011, a majority of which time Ms. S alemi was on FMLA leave.37 As to the third alleged materi ally adverse action—Ms. Setter di scouraging her from filing a written complaint—Ms. Salemi fails to cite any ca se law for the proposition that discouraging an employee from filing a formal, internal wr itten complaint is a materially adverse action. Accor dingly, Ms. Salemi has not adeq uately developed this argument. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to cons ider arguments that . . . are in adequately presented[] in an appellant’s opening brief.”). In summation, Ms. Salemi failed to preserve her argument that s he engaged in protected activity as early as M arch 2011. Ms. Salemi also fail ed to carry her burden of demonstrating that, after May 1 8, 2011, she suffered a material ly adverse action attributable to her engagement in protected activity. According ly, we affirm the district court’s grant of summary judgmen t on Ms. Salemi’s Title VII ret aliation claim.
4. 42 U.S.C. § 1981 Retaliation Claim 15 Section 1981(a) of Title 42 states: All persons within the jurisdicti on of the United States shall have the same right in every State and Te rritory to make and enforce con tracts, to sue, be parties, give evidence, and to the full and equal benef it of all laws and proceedings for the sec urity of persons and property a s is enjoyed by white citizens, and sh all be subject to like punishm ent, pains, penalties, tax es, licenses, and exactions of every kind, and to no other.

15 Ms. Salemi brought her § 1981 cl aim under 42 U.S.C. § 1983, wh ich provides the cause of action for damages against state actors f or § 1981 violations. Bolden v. City of Topeka , 441 F.3d 1129, 1137 (10th Cir . 2006). It is undisputed that Mr. Moore and Ms. Setter, as empl oyees of PERA, are state actor s. This same conclusion holds true relative to Ms. Salemi’s First Amendment claim discussed infra

.38 Section 1981 “prohibits not only racial dis crimination but also retaliation against those who oppose it.” Parker Excavating, Inc. v. Lafarge W., Inc. , 863 F.3d 1213, 1220 (10th Cir. 2017) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 355 (2013)). “When courts consider§ 1981 retaliation claims, t he principles set forth in Title VII retaliation cases apply with equal force.” Id. (internal quotation marks omitted). Accordingly, absent di rect evidence of retaliation, a plaintiff’s § 1981 retaliation claim is evaluated under a McDonnell Douglas burden-shifting framework. Id. However, unlike Title VII, which protects against various forms of discrimination including discrimi nation based on sex, § 1981 pr otects against only discrimination based on race. 16 See Skinner v. Total Petroleum, Inc. , 859 F.2d 1439, 1447 (10th Cir. 1988) ( per curiam) (holding that claim is only cognizable under § 1981 if it involves a “racial situation”), superseded by stat ute on other grounds

. Thus, to state a retaliation cl aim under § 1981, a plaintiff mu st have opposed racebased discrimination. See Parker Excavating, Inc. , 863 F.3d at 1220. And, to establish a prima facie case o f retaliation under § 1981, a pla intiff must show that “(1) [she] engaged in opposition to racial discrimination that is protected under the statute; (2) a reasonable pers on would have found the challenge d action materially adverse; and (3) a causal connec tion existed between the protec ted activity and the adverse action.” Id.

16 At oral argument, Defendants c onceded that national origin qua lifies as race for purposes of § 1981. We accept Defendants’ concession withou t further comment.39 The district court divided Ms. Sal emi’s claim into two periods: (1) May 2011 through September 2011 and (2) Se ptember 2011 through Ms. Salem i’s termination in May 2012. 17 Relative to the first period, t he district court relied on its reasons for rejecting Ms. Salemi’s Title VII retaliation claim to reject he r § 1981 retaliation claim. Because the elements of a prima facie cas e are the same under both claims, we concur with the district court’s approach as to pre-September 2 9, 2011, alleged adverse actions. Relative to the second period, the district co urt concluded Ms. Salemi’s termination was the onl y action asserted by Ms. Salemi that qualified as adverse and that she failed to establish a causal connection be tween her protected activity and her termination wher e the two events did not occurin close temporal proximity to one another. In perf orming its temporal analysis, the district court considered the amount of time th at elapsed between Ms. Salemi’s initial complaints about discrimination in May and June 2011 and he r May 2012 term ination. On appeal, Ms. Salemi identifies four post-EEOC charge actions she alleges qualify as adverse actions: (1) Mr. Moore assigning her adminis trative work; (2) Mr. Moore’s January 2012 decision to p romote Mr. Saunders to the Po rtfolio Manager position; (3) Mr. Moore’s March 22 , 2012, memo criticizing Ms. Salemi’s performance; and (4) PERA’s May 2 012 termination of Ms. Salemi’ s employment.

17 Because a § 1981 claim is not s ubject to any e xhaustion requir ement, see CBOCS W., Inc. v. Humphries , 553 U.S. 442, 455 (2008), t he district court could consider alleged adverse actions occurring after Ms. Salemi’s E EOC charge on September 29, 2011.40 Ms. Salemi argues the district c ourt committed two errors in an alyzing her § 1981 retaliation claim. First, Ms. Salemi contends that , for purposes of the third elem ent of a prima facie case, the district court improperly focused exclusively o n the amount of time between her protected activity and the alleged adverse actions, rather than considering the proximity of the events in combination with oth er evidence that supported an inference of retali ation. But Ms. Salemi does not identify what other evidence of retaliatory motive sh e presented to the district co urt and we have found none. Because Ms. Salemi has notadequately preserved or develo ped an argument for retaliatory motive based on a nything other than the closene ss in time between her protected activity and the alle ged adverse actions, her ability to satisfy the third element of the prima facie case r ises and falls solely on tempo ral proximity. As to temporal proximity, Ms. S alemi argues the district court used the wrong starting date. Specifically, she claims the distr ict court shou ld have considered the time between her September 29, 2 011, EEOC charge and the advers e actions, rather than the time between her firs t protected activity and the adve rse actions. Even accepting Ms. Salemi’s starting poi nt for purposes of argument, her temporal proximity argument fails. We have held that a three-month gap, standing alone, is insufficient to establish causati on between the protected activ ity and the adverse action. See Richmond v. ONEOK, Inc. , 120 F.3d 205, 209 (10t h Cir. 1997) (adopting district court’s conclusion that three-month gap was insufficie nt to establish temporal proximity but doing so in contex t of retaliation claim under Fa ir Labor Standards41 Act). The first adverse action occurring after Ms. Salemi’s EEO C charge, as identified in Ms. Salemi’s openi ng brief, is Mr. Moore’s Decemb er 2011 assignment of administrative wo rk. Assuming, without deciding, that the EE OC charge reset the temporal proximity clock, nearly three months passed between th e EEOC charge and this alleged adverse action. As such, there is not sufficient t emporal proximity between the events to establish causation without more. Here, M s. Salemi has not offered anything more than tempor al proximity to establish caus ation. Therefore, Ms. Salemi failed to advance suffici ent evidence to satisfy the thi rd element of her prima facie case, and we affirm the dis trict court’s grant of summary judgment on her 42 U.S.C. § 1981 retaliation claim.
5. First Amendment Retaliation Claim To advance a First Amendment re taliation claim, a plaintiff mus t demonstrate that “(1) she was engaged in cons titutionally prot ected activity, (2 ) the defendants’ actions caused her to suffer an injury t hat would chill a person of ord inary firmness from continuing to engage in that pro tected activity, and (3) the de fendant[s’] actions were substantially motivated as a res ponse to her protected conduct. ” McBeth v. Himes , 598 F.3d 708, 717 (10th Ci r. 2010) (internal quotation marks omitte d). “A government employee must show that his speechwas on a matter of public co ncern in order for that speech to be protected und er the First Amendment.” Cotarelo v. Vill. of Sleepy Hollow Police Dep’t , 460 F.3d 247, 252 (2d Cir. 2006); see Helget v. City of Hays , 844 F.3d 1216, 1221 (10th Cir. 2017). In granting summary judgment, the district court concluded that Ms. Salemi’s complaints o f discrimination focused on her p ersonal interactions at42 PERA such that her complaints di d not involve a matter of publi c concern or qualify as “constitutionally protected activ ity.” Ms. Salemi argues on app eal that her EEOC charge alleged “class-based discrimination” and that speech exposing c lass-based discrimination in a government workplace is a matter of public concern. Whether a statement addresse s a matter of public concern is a question of law. Leverington v. City of Colo. Springs , 643 F.3d 719, 726–27 (10t h Cir. 2011). “Matters of public concern are those of inter est to the community, whether for social, political, or other reasons.” Id. at 727 (quotation marks omitted). W e determine if speech addre sses a matter of public concern by eva luating “the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers , 461 U.S. 138, 147–48 (1983). “The focus is therefore upon whether the public or the community is likely to be truly concerned with or interes ted in the particular expression , or whether it is more properly viewed as essentially aprivate matter between employe r and employee.” Berger v. Battaglia , 779 F.2d 992, 999 (4 th Cir. 1985) (internal quotation marks o mitted); cf. Borough of Duryea v. Guarnieri , 564 U.S. 379, 398 (2011 ) (“If a public employee petitions as an employee on a matt er of purely private concern, the employee’s First Amendment interest must give w ay, as it does in speech cases.”) . In evaluating the distinction between public and pr ivate matters, “it is not always enough that the subject matter of a communication be one in which there might be general interest; rather, what is actually said on the topic is the crux of the p ublic concern content inquiry. ” Leverington , 643 F.3d at 727 (internal quotation marks omitted ). Finally, our analysis “may focus on the motive of the speaker and wh ether the speech is calculated to disclose mi sconduct or43 merely deals with personal disputes and grievances un related to the public’s interest .”
Id. (quotation marks omitted); see David v. City & Cty. of Denver , 101 F.3d 1344, 1356 (10th Cir. 1996) (concluding that s tatements about sexual haras sment and retaliation against the individual speaker that did not allege the same con duct against other employees or conduct impacting th e government’s performance of its responsibilities did not qualify as speech on a matter of public concern under Connick).
In Connick , the Supreme Court noted that speech by a public employee abou t her public school’s racially discr iminatory policies qualified as s peech on a matter of public concern. 461 U.S. at 146 (citing Givhan v. W. Line Consol. Sch. Dist. , 439 U.S. 410 (1979)). Likewise, speech exposing class-based discrimination i n a government workplace that impacts more than just the speaker qualifies as speech on a matter of public concern. See Cotarelo , 460 F.3d at 252 (collecting cases). Thus, if a reasonable jury could construe Ms. Salemi’s EEOC charge as raising a claim of class-based discrimination, the charge woul d qualify as speech on a matter of public concern. We, however, conclude that no reasonable jury could so construe Ms. Salemi’s EEOC charge when the charge is read on the wh ole and in the context of the composition of the AI Division. Ms. Salemi’s EEOC charge did state that she was raising a charg e of discrimination “on behalf of [he r]self and others similarly sit uated, and on a class-wide basis.” App’x at 492. Ms. Salemi also stated in her charge that there were “unequal and unfair training practices within [her] department.” Id. at 495. But other than an administrative assistant, Ms. Sal emi was the sole female in the AI Division. Thus, the44 complaints about training prac tices could apply only to her. An d while Ms. Salemi’s EEOC charge alleged that Mr. Moo re required the female administrative assistant to perform secretarial tasks for mal e Portfolio Managers, no reaso nable jury could conclude that assigning an individual the type of work the individual is tasked with and paid for constitutes sex discrimination me rely because the work is being performed by a female for a male. Accordingly, although Ms. Salemi uses the words dis crimination on a “classwide basis” in her EEOC charge , the charge cannot reasonably be read as advancing claims of discrimination that a ffected more than just Ms. Salem i. Therefore, Ms. Salemi’s EEOC charge does not qualify as speech on a matter of public co ncern, and we affirm the district court’s grant of summaryjudgment on her First Amendme nt retaliation claim because she failed to a dvance evidence satisfying the first ele ment of her prima facie

case. 6. FMLA Retalia tion Claim Claims for retaliation under the FMLA are subject to the McDonnell Douglas burden-shifting framework. Metzler v. Fed. Home Loan Bank of Topeka , 464 F.3d 1164, 1170 (10th Cir. 2006). To ma ke out a prima facie case of retaliation, Ms. Salemi needed to demonstrate that “(1) she engaged in a protect ed activity; (2) [PERA] took an action that a rea sonable employee would have fou nd materially adverse; and (3) there exists a causal connection between the p rotected activity and the adverse action.” Id. at 1171 (footnote omitted). The taking of FMLA leave is a protected activity for purposes of the first element of a prima facie case. Id. Likewise the termination of an employee is a materially adverse action. See id . The district45 court also concluded that a “ch ange in job responsibilities” an d a failure to promote qualified as materially adverse actions. The district court con cluded, however, that Ms. Salemi failed to satisfy the t hird element of her prima fac ie case because (1) there was not a close temporal c onnection between when she tookleave and when the materially adverse actions occurre d and (2) no other evidence s uggested the materially adverse actions were a consequence of Ms. Salemi tak ing FMLA leave. 18 In reaching its conclusion regardi ng the lack of temporal proxi mity, the district court focused on the time that elapsed between when Ms. Salemi took FMLA leave— July 2011—and when the materia lly adverse actions occurred. On appeal, Ms. Salemi argues the district court should have considered the time that elapsed between when she returned from FMLA leave—D ecember 2011—and when the materia lly adverse actions occurred. Assuming Ms. Sal emi is correct t hat the tempo ral proximity clock commences when an employ ee returns from FMLA leave, 19 Ms. Salemi still fails to advance sufficient evidence to sa tisfy the third element of a p rima facie case. On appeal, Ms. Salemi argues that, after returning from FMLA leave , she experienced a “loss of responsibilities , . . ., an increasi ngly aggressive ca mpaign of written performance criticisms, and then h er termination on May 10, 201 2.” Opening Br. at

18 Separately, the district court concluded that Ms. Salemi could not bring her FMLA claim against Mr. Moore a nd Ms. Setter. On appeal, Ms. Sal emi does not raise any arguments on this matter; i nstead she challenges only the d ismissal of her FMLA claim as against PERA.

19 We have previously couched our t emporal proximity analysis in terms of the time that elapsed between the e mployee requesting FMLA leave an d the adverse action. See Metzler v. Fed. Home Loan Bank of Topeka , 464 F.3d 1164, 1171–72 (10th Cir. 2006).46 49. The written performance criti cisms occurred in March and Ap ril 2012, three and a half months after Ms. Salemi’ s return from FMLA leave. And th e termination occurred in May 2012, five months after Ms. Salem i’s return fro m FMLA leave. Accordingly, temporal proximity a lone cannot establish a causal connection between the protected activity and these adverse actions. See Metzler , 464 F.3d at 1172 (citing Richmond v. ONEOK, Inc. , 120 F.3d 205, 209 (10th Cir . 1997), for proposition “that a period of three months between t he protected activity and the adverse action, standing alone, is not sufficien t to establish causation”). As to the “loss of responsibilitie s,” it is not clear from Ms. Salemi’s opening brief, or her statement of fac ts in response to summary judgmen t, when exactly this occurred. To that point, none of Ms. Salemi’s submissions in th is court identify any specific dates relative to the “loss of responsibilities.” And, in her deposition testimony, Ms. Salemi could not r ecall when after her return fr om FMLA Mr. Moore began changing her work responsibilities. 20 See App’x at 544–45, 3716. Thus, Ms. Salemi fails to advance sufficie nt evidence to demonstrate a ca usal connection

20 The exception to this is the ass ignment of cash flow activitie s on the week Ms. Salemi returned from FMLA l eave. But, where Mr. Moore assig ned Ms. Salemi cash flow activities before she took FMLA leave, a r easonable jury could not conclude that the continued as signment of these same activities was in retaliation for Ms. Salemi taking FMLA leave. See Foster v. Mountain Coal Co. , 830 F.3d 1178, 1192 (10th Cir. 2016) (quoting Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 272 (2001)) (noting that an employe r “need not suspend previously p lanned adverse employment actions upon encounter ing an employee’s protected ac tivity”).47 between her return from FMLA l eave and any loss of responsibili ties. 21 Therefore, we affirm the district court’s gr ant of summary judgment on Ms. Sa lemi’s FMLA retaliation claim.

B. Construction of Amended Complaint & Request to Add EPA Retaliation Claim
1. District Court’s Construct ion of Amended Complaint Ms. Salemi argues that her amende d complaint pleaded the elemen ts of an EPA retaliation claim and put PER A on fair notice of her intent to raise such a claim. From this, Ms. Salemi argues the district court erred in denyin g her request to try an EPA retaliation claim. 22 But, in the district court, Ms. S alemi raised her argument tha t her amended complaint contai ned an EPA retaliation claim after the entry of the final pretrial order that did not iden tify an EPA retaliation claim t o be submitted to the jury. Thus, presentation of an EP A retaliation claim to the jur y would have necessitated an amendment to the final pretrial order, irrespec tive of whether the

21 Ms. Salemi points us to no non-temporal proximity evidence lin king the alleged adverse actions to her taking FMLA leave such that she could rely on a gap of three months combined with o ther evidence to establish a cau sal connection.

22 Ms. Salemi fails to articulate a standard of review with respe ct to her argument that her amended complain t contained an EPA retaliatio n claim. As such, Ms. Salemi failed to comply with F ederal Rule of Appellate Proc edure 28(a)(8)(B), which states that the argument s ection of the brief must contai n, “for each issue, a concise statement of the applic able standard of review . . . .” This omission is particularly troublesome where Ms. Salemi (1) failed to include a standard of review for several of her arguments on appeal; (2) failed to include a summary of the argument section as required by Federal Rule of Appellate Proce dure 28(a)(7); and (3) came within 143 words of the word limit for opening briefs, as set by Federal Rule of Appellate Procedure 32(a )(7)(B). Inclusion of the requi red standard of reviews and the summary of the a rgument section would almost ce rtainly have put Ms. Salemi over the word limit.48 amended complaint a sserted that claim. See Monod v. Futura, Inc. , 415 F.2d 1170, 1173 (10th Cir. 1969) (pretrial o rder “supersede[s]” the pleadi ngs as to issues for trial). Because the final pretri al order “superseded” her amend ed complaint with respect to the claims and issues for trial, even if Ms. Salemi’ s amended complaint placed PERA on fair notice of herinitial intent to bring an EP A retaliation claim, that would not have permitted Ms. Salem i to present such a claim to the jury after excluding it from the pretrial ord er. Accordingly, we need not resolve whether the amended complaint, in fact, ade quately notified PERA that Ms. S alemi intended to bring an EPA retaliation claim. 2. Request to Add EPA Retaliation Claim Both before and during trial, M s. Salemi unsuccessfully sought permission to add an EPA retaliation claim. On appe al, Ms. Salemi argues the district court abused its discretion when it did not perm it her to add an EPA retaliationclaim under Federal Rule of Civil Procedure 15(b). As PERA points out, Rule 15(b) covers amendments to the complaint during and after trial, while Rule 15(a) covers amendments to the complaint before trial. Because Ms. Salemi does not present an argument o n appeal relative to Rule 15(a), or even cite the Rule, she has not adequately contested the district court’s decision not to allow the pretrial amendm ent, and we limit our review to the district court’s denial of Ms. Salemi’s request during trial. See Bronson , 500 F.3d at 1104. Rule 15(b) permits a party to amend its complaint: (1) Based on an Objection at Trial . If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be ame nded. The court should freely per mit an49 amendment when doing so will aid in presenting the merits and t he objecting party fails to satisfy the court that the evidence wo uld prejudice that party’s action or d efense on the merits. The cou rt may grant a continuance to enable the objecting party to meet the e vidence. (2) For Issues Tried by Consent . When an issue not raised by the pleadings is tried by the partie s’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--t o amend the pleadings to confor m them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. Relying on subsection (b)(2), Ms . Salemi argues that PERA impl icitly consented to trial on an EPA retaliation claim by not objecting to (1) direct exam ination testimony by Ms. Salemi about retaliation for seekin g equal pay and (2) testimony on cross examination by Mr. Moore and Ms. Setter about their conduct toward Ms. Salemi after she sought equal pay. Ms. Salemi also argues th at PERA elicited testimony from M r. Moore and Ms. Setter about not retaliating against Ms. Salemi. Two procedural matters cause us to affirm the district court’s decision to reject Ms. Salemi’s request to submit anEPA retaliation claim to the jury. First, as noted earlier, the final pretrial orde r supersedes the complaint as t o the issues to be presented at trial. See Monod , 415 F.2d at 1173; see also Fed. R. Civ. P. 16(d) (“ Pretrial Orders

. After any conference under this rule, the court should issue anorder reciting the action taken. This order controls the course of the action unless the court modifies it.” (emphasis added)). Here, the fina l pretrial order did not ident ify an EPA retaliation claim as one of the claims to be subm itted to the jury. And, under Fe deral Rule of Civil Procedure 16(e), “[t]he court may modify the order issued after a final pretrial conference only to prevent manifest injustice .” (emphasis added). But, Ms . Salemi neither moved to50 amend the final pretrial order n or presented a manifest injusti ce argument to the district court when requesting that she be permitted to submit an EPA re taliation claim to the jury. Nor does Ms. Salemi presen t a manifest injustice argument under Rule 16(e) in her briefs on appeal. Accordingly, Ms. Salemi failed to make the pr oper motion in the district court and has not raised the neces sary arguments in the distric t court or in this court in support of the amendment she desired. Second, the record shows the di strict court twice questioned co unsel for Ms. Salemi about whether some of the e vidence offered at trial stra yed into the issue of retaliation. In response, Ms. Sal emi’s counsel argued the exhib its were necessary for “context” and were part of the “res gestae” of the case. Id. at 1716, 1767. During the first exchange with the distric t court, counsel for Ms. Salemi also responded to the district court’s c oncern by stating: Your Honor, my response to that w ould be that the other issues— we understand that with regard to th e retaliation claim we cannot collect damages for that, and the jury w ill be properly instructed that we don’t—that we are not getting any damages for that. The jury wi ll be instructed what damages we are a llowed to collect if we win, wh ich will not include those. And the jury will properly be instructed what the legal claims are, which will not include a retaliation claim

. Id. at 1715–16 (emphasis added). And during the second exchange, PE RA’s counsel contended an exhibit “menti ons expressly retaliation,” id. at 1766, to which the district court agreed, and coun sel for Ms. Salemi replied: And, Your Honor, and with regard to that, we are not asserting a retaliation claim , and the jury will be properl y instructed that it’s a claim under the Equal Pay Act fo r discrimination in pay. And ob viously the verdict form will follow al ong that. So it’s I think a litt le bit troubling to keep out the facts of what ended up happening in t he case.51 We’re not claiming retaliation as a stand-alone legal claim at this point based on the Court’s prior ruli ngs, but it doesn’t change the r es gestae of what happened. So, you know, i t’s a little bit of an artific ial constraint to not be allowed to u se the word “retaliation” when , in fact, what happened is she i s trying to rebut the se assertions that s he is not doing her job, and then she says, you know, I have been doing m y job all along, I’ve gotten eight years of good performance reviews. We are not trying to bring a st and-alone retaliation claim . I understand that that boat has sailed with the Court’s prior rulings. But she’s still , I think, entitled to provide a descripti on of why she’s rebutting the ar ticulated deficiencies in he r performance.
Id. at 1767–68 (emphasis added). Given Ms. Salemi’s counsel’s state ments at trial that presentat ion of evidence which might tend to show retalia tion would not be grounds for p resenting an EPA retaliation claim to the jury, Ms . Salemi cannot now argue on a ppeal that PERA consented to trial on an EPAretaliation claim by permitting th e admission of this very evidence. Accordingly , the district court did not abuse its dis cretion when it rejected Ms. Salemi’s mid-trial request to su bmit an EPA retaliation claim t o the jury.

III. CONCLUSION
AFFIRMED

. Entered for the Court

Carolyn B. McHugh Circuit Judge